The opinion of the court was delivered by: MANN
REPORT AND RECOMMENDATION
ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Plaintiffs, employees of the New York City Transit Authority ("TA"), filed this civil rights action pursuant to 42 U.S.C. § 1983, against the TA and managers and supervisors within the TA, seeking injunctive relief, compensatory damages, and punitive damages. Although plaintiffs allege twelve causes of action, defendants have moved for summary judgment, pursuant to Fed. R. Civ. P. 56(c), only on the First, Tenth, Eleventh, and Twelfth Causes of Action, and plaintiffs have cross-moved on the First, Eleventh, and Twelfth Causes of Action. By order of the Honorable Frederic Block, the motions were referred to the undersigned for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).
In the First Cause of Action, plaintiff Corine Scott ("Scott") alleges that defendant Raymond Goodman ("Goodman"), the Director of Labor Relations for the TA's Rapid Transit Operations Division, acting in violation of Scott's First and Fourteenth Amendment rights, penalized her in retaliation for her membership in, and substantial activity in connection with, the Transport Workers Union of America, Local 100, AFL-CIO ("Local 100"). (Complaint ["Comp."] at PP 1, 11, 14-15.) Scott further claims that Goodman violated her rights by withholding otherwise available work because she refused to waive her right to pursue a civil rights lawsuit. (Id. at PP 1, 13-15.)
In the Tenth Cause of Action, plaintiff Robert Cantrell ("Cantrell"), who previously had been demoted from the position of train operator, complains that Goodman denied him reinstatement to that position in retaliation for Cantrell's union membership and activity. (Id. at P 97.)
In the Eleventh and Twelfth Causes of Action, plaintiffs assert that the TA's Rule 10(f), an "anti-adornment" policy prohibiting employees from wearing buttons or pins on their uniforms, is an unconstitutional restriction on their right to free speech, both on its face and in its application by TA management. (Id. at PP 104, 106-07, 109.)
Defendants have moved for summary judgment, contending that Scott's First Cause of Action is barred by collateral estoppel and is moot; that Cantrell has failed to adduce sufficient evidence to support his claim in the Tenth Cause of Action; that the anti-adornment policy at issue in the Eleventh and Twelfth Causes of Action is proper and justified on its face and in its application; that the Eleventh and Twelfth Causes of Action are moot; and that the individual defendants are entitled to qualified immunity on the Eleventh and Twelfth Causes of Action. Defendants also request that plaintiffs' claims be severed from one another. Plaintiffs, through a series of motions and responses, have cross-moved for summary judgment on the First Cause of Action, as well as on the Eleventh and Twelfth Causes of Action.
For the reasons that follow, it is the recommendation of this Court that partial summary judgment be granted to defendants on the First, Eleventh, and Twelfth Causes of Action; that plaintiffs' motion be granted in part on the Eleventh and Twelfth Causes of Action; and that all other motions for summary judgment be denied.
I. THE FIRST CAUSE OF ACTION
According to plaintiffs' submissions,
Scott is an employee of the TA and an active member of Local 100, "the bargaining representative for most TA employees." (Comp. at PP 3, 7.) She has served as local shop steward, a position through which she has represented workers in "numerous grievances" against the TA (id. ; Affidavit of Corine Scott ["Scott Aff."] at P 1); founded a sub-organization called the Transit Women United in order to address the complaints of women workers, including maternity leave (Comp. at P 8; Scott Aff. at P 3); circulated petitions protesting the TA's proposed implementation of one-person train operation and sent copies to TA management (Comp. at P 9; Scott Aff. at P 4); helped lead a rank-and-file group called "New Directions," which publishes a newsletter entitled "Hell On Wheels" (Comp. at P 10); and has been the Vice-Chair of a section within Local 100. (Comp. at P 10; Scott Aff. at P 5.)
On April 24, 1991, after a period of maternity leave and sick leave resulting from several seemingly unrelated illnesses, the Medical Department of the TA removed Scott from "no work" status and placed her on "restricted duty," thereby permitting her to perform some, but not all, TA duties. (Transcript of Hearing before the New York Public Employment Relations Board held on December 12, 1991 ["PERB Tr."], Testimony of Corine Scott ["Scott Test."], attached as Exhibit ["Ex."] 6 to Defendant's Notice of Motion for Summary Judgment ["Def. Notice"], at 34-35.) However, despite repeated inquiries of numerous TA supervisory personnel, Scott was not assigned to any position, and thus she was not able to work or receive pay. (Id. at 45-52.)
More specifically, according to Scott's testimony, one supervisor in the Labor Relations Department told her that a decision regarding a placement for her was "out of his hands," another supervisor told her "pretty much the same thing," and at least two other personnel supervisors told her she would need to see Goodman in order to find out about a placement. (Id. at 45-48.) She met with Goodman, who told her he would need to review her file and would get back to her. (Id. at 48.) Goodman did not contact her, and she continued to search for a placement. (Id. at 48-49.)
On May 20, 1991, Scott spoke with Kenneth Evans ("Evans"), a train line supervisor, who stated that he knew of an available position. However, after Evans put in a call to check on this lead, Scott claims she was told by Wilfredo Perez ("Perez") of the crew assignment office, "I cannot give you the job." When pressed for an explanation, Perez responded, "You can speak with someone in Labor Relations, but I cannot give you the job," and he further indicated that Scott would have to speak with Goodman. (Id. at 50-52.)
Scott then contacted an attorney, Arthur Schwartz, Esq., who wrote a letter to Goodman stating that Scott would sue Goodman and the TA if Goodman continued to prevent Scott from obtaining restricted duty work on account of her union activities. (PERB Tr., Testimony of Raymond Goodman ["Goodman Test."] at 98; see also Letter from Arthur Schwartz, Esq., to Goodman dated 6/3/91 ["Schwartz Letter"], attached as Ex. A to Plaintiffs' Counter-Statement of Facts Pursuant to Local Rule 3(g) ["Pl. Counter"].) In July of 1991, Goodman met with Scott and offered to place her in a working position in exchange for her promise to waive all claims against him and the TA. (PERB Tr., Scott Test. at 61-62; PERB Tr., Goodman Test. at 101-02.) Scott refused and filed a claim with the Public Employment Relations Board ("PERB"), alleging that Goodman's actions -- his denial of her requests for placement ("anti-union" claim) -- violated sections 209-a.1(a) and (c) of the Public Employees' Fair Employment Act. (Decision of ALJ ["ALJ Decision"], attached as Ex. 7 to Def. Notice, at 1.)
A hearing was held before Administrative Law Judge ("ALJ") Gary Johnson on December 12, 1991. At the hearing, Scott additionally alleged that Goodman's offer to place her in exchange for her waiver of claims ("waiver-of-rights" claim) constituted a new and independent violation of her rights. In a written opinion, ALJ Johnson found "no evidence of animus and no evidence that the TA acted because of any protected activity" and dismissed the complaint. (ALJ Decision at 8.) However, he concluded that the waiver-of-rights issue was not properly before him and declined to rule on its merits. (Id. at 8-9.)
On February 5, 1993, Scott took her claims before Impartial Arbitrator Daniel G. Collins ("Collins"). Arbitrator Collins similarly found no abuse of discretion on the part of the TA regarding the anti-union portion of the claim, but he did find that Goodman's conditional offer of placement "[made] out a clear case of abuse of discretion" and awarded Scott ten days' back-pay. (Arbitration Opinion and Award ["Arb. Op."], attached as Ex. A to Plaintiffs' Supplemental Statement of Material Facts Not In Issue Pursuant to Local Rule 3(g), at 2-3.)
After a series of briefs and responses by both parties, plaintiffs cross-moved for summary judgment on the merits of the entire First Cause of Action, contending that their showing had shifted to defendants the burden to establish a non-discriminatory reason for their actions and that defendants had not met this burden. (Memorandum of Law In Support of Plaintiffs' Second Motion For Partial Summary Judgment dated 4/1/94 ["Pl. Mem. 4/1/94"] at 7-9.) Defendants responded by arguing that Scott's section 1983 suit contained no new allegations that would defeat collateral estoppel; and that Goodman's settlement offer neither "gives rise to a separate cause of action" nor can serve as the basis for a claim because offers to settle are inadmissible under Fed. R. Evid. 408. (Defendants' Memorandum of Law dated 3/17/94 ["Def. Mem. 3/17/94"] at 4.) Finally, defendants also contended that the waiver-of-rights claim was moot in light of Arbitrator Collins's finding and award for Scott on that issue. (Defendants' Supplemental Memorandum of Law dated 12/14/95 ["Def. Mem. 12/14/95"] at 3.)
Although both the anti-union and waiver-of-rights issues are pleaded together in the complaint under the First Cause of Action, the parties' briefs reflect a bifurcation of that cause of action into two distinct First Amendment claims: that defendants allegedly failed to place Scott into a position in retaliation for her union activity (anti-union claim), and that Goodman's conditional offer to place her, and subsequent failure to do so during the period preceding October 16, 1991, amounted to independent retaliation against Scott for asserting her right to bring a civil rights lawsuit (waiver-of-rights claim). This Court, too, recognizes the need to distinguish between the two parts of the First Cause of Action, and thus we address them separately below.
B. Scott's Anti-Union Claim
In University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986), the Supreme Court concluded that the traditional doctrines of res judicata and collateral estoppel are applicable to the findings of state agency proceedings in subsequent suits brought under section 1983. The Court held that "when a state agency 'acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Id. at 799, 106 S. Ct. at 3226 (footnote omitted) (quoting United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966)). See also Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991); DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 116 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987). Accordingly, in order to decide the preclusive effect of the PERB decision in this case, the Court must determine (1) whether the agency acted in a "judicial capacity," (2) whether the disputed issue was properly before PERB and the parties had an "adequate opportunity to litigate" it, and (3) the preclusive effect that would be given to a PERB decision by New York State courts. See, e.g., DeCintio, 821 F.2d at 116; Kirkland v. City of Peekskill, 651 F. Supp. 1225, 1228 (S.D.N.Y.), aff'd, 828 F.2d 104 (2d Cir. 1987).
Turning first to the final factor under Elliott, the standards articulated by New York courts largely mirror the remaining factors analyzed in Elliott and its progeny. Under New York law, two requirements ordinarily must be met in order for the doctrine of issue preclusion to bar a party from relitigating an issue raised and decided adversely to that party in a prior proceeding: "There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling." Schwartz v. Public Adm'r, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725 (1969) (quoted in Murphy v. Gallagher, 761 F.2d 878, 882 (2d Cir. 1985)). See Temple of the Lost Sheep, 930 F.2d 178, 183 (2d Cir.), cert. denied, 502 U.S. 866, 116 L. Ed. 2d 153, 112 S. Ct. 193 (1991); Polur v. Raffe, 912 F.2d 52, 55 (2d Cir. 1990), cert. denied, 499 U.S. 937, 113 L. Ed. 2d 446, 111 S. Ct. 1389 (1991); Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-02, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487 (1984). If this two-part test has been satisfied, issue preclusion will apply "whether or not the tribunals or causes of action are the same." Murphy, 761 F.2d at 881 (quoting Ryan, 62 N.Y.2d at 500, 478 N.Y.S.2d at 826). However, where the prior proceeding was before an administrative agency rather than a court, "New York courts additionally require that the agency's determination be 'quasi-judicial' in character . . . ." Long Island Lighting Co. v. Imo Industries, Inc., 6 F.3d 876, 885 (2d Cir. 1993). See also Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, 532 N.Y.S.2d 230, 232, 528 N.E.2d 153 (1988), cert. denied, 488 U.S. 1005, 102 L. Ed. 2d 777, 109 S. Ct. 785 (1989).
Accordingly, in determining the preclusive effect of an agency decision, federal and New York State courts employ the same analysis. Applying that analysis to the facts of this case, this Court concludes that the PERB decision should be given preclusive effect.
First, defendants assert, and plaintiffs do not deny, that PERB acted quasi-judicially in hearing and deciding Scott's anti-union claim. The Public Employees' Fair Employment Act, §§ 200 et seq. (McKinney 1983), was adopted in 1967 and established PERB in order to, inter alia, "establish procedures for the prevention of improper employer and employee organization practices . . . and to take such affirmative action as will effectuate the policies of this article . . . , including but not limited to the reinstatement of employees with or without back pay . . . ." Id. § 205(d). PERB is authorized to conduct hearings in which it has the power to "administer oaths . . . , examine witnesses and documents, take testimony and receive evidence, [and] compel the attendance of witnesses and the production of documents by the issuance of subpoenas . . . ." Id. § 205(k). As a "[tribunal] employing procedures substantially similar to those used in a court of law," Ryan 62 N.Y.2d at 499, 478 N.Y.S.2d at 826, PERB acts in a quasi-judicial capacity. See, e.g., Allied Chem., 72 N.Y.2d at 277, 230 N.Y.S.2d at 233 (holding Public Service Commission to be quasi-judicial); DeCintio, 821 F.2d 111 (holding New York State Division of Human Rights ["SDHR"] to be quasi-judicial); Kirkland, 651 F. Supp. 1225 (same). See also Matter of Incorporated Vil. of Lynbrook v. New York State Public Employment Relations Bd., 48 N.Y.2d 398, 423 N.Y.S.2d 466, 399 N.E.2d 55 (1979) (PERB's interpretive determinations entitled to final effect unless affected by an error of law or arbitrary and capricious or an abuse of discretion) (citing Matter of West Irondequoit Teachers Ass'n v. Helsby, 35 N.Y.2d 46, 50, 358 N.Y.S.2d 720, 722, 315 N.E.2d 775 (1974)).
The Court must next consider whether Scott was afforded "a full and fair opportunity in the prior administrative proceeding to contest the decision now said to be controlling . . . ." Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 826 (citations omitted). In this connection, the New York Court of Appeals explained:
Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel . . . [and] the differences in the applicable law and the foreseeability of future litigation.
Nowhere do plaintiffs contend that PERB's procedures were flawed or amounted to a denial of due process. Moreover, as Scott was seeking reinstatement and back pay in the agency hearing, she had every reason to litigate her claim vigorously before the ALJ. She was represented by competent counsel
who presented witnesses, conducted cross-examination, and introduced documents and other evidence; future litigation was plainly foreseeable, as her actions and those of her attorneys made clear that she was contemplating a federal civil suit following the PERB hearing. (PERB Tr. at 61-62, 98, 101-02.) See also Nurse v. City of New York, 735 F. Supp. 69, 71 (S.D.N.Y. 1990) (preclusive effect given to SDHR decision where plaintiff was "represented by counsel, called witnesses and was afforded the opportunity to cross-examine them.").
In order to avoid the preclusive effect of the PERB decision, Scott contends that one aspect of the Elliott/Ryan test has not been met: the identical nature of the issues before PERB and in this section 1983 action. This Court disagrees. In her claim before PERB, Scott alleged that she was denied work in retaliation for her union activities; both sides presented evidence on this issue, and the ALJ's ruling dealt solely with whether or not the defendants were motivated by anti-union animus. (See ALJ Decision.) Similarly, the First Cause of Action in the instant lawsuit alleges that "Goodman denied Scott employment . . . because of, and in retaliation against, [her] speech and associational activities . . . ." (Comp. at P 14.) Regarding the anti-union claim, then, no distinction exists between the conduct alleged here and that which was addressed in the PERB hearing.
The distinction cited by Scott is immaterial. Scott claims that the relief sought in the current suit is broader than that sought in the PERB hearing. (Pl. Mem. 2/25/94 at 11-13.) She asserts that because her claim in the PERB hearing covered Goodman's conduct only up to and including May 20, 1991, her section 1983 action, which complains of Goodman's conduct through October 16, 1991, raises a different issue for litigation. (Id. at 12.) However, Scott has neither alleged nor proffered any new facts pertaining to the period of late May through October upon which her anti-union claim could be sustained, nor has she provided any legal support for the proposition that the mere assertion of a prolonged period of alleged conduct in any way creates a new or different issue or violation of her rights. Cf. Penny v. Winthrop-University Hospital, 883 F. Supp. 839 (E.D.N.Y. 1995) (plaintiff's pleading in employment discrimination suit alleged facts sufficient to support claim of continuing discrimination by hospital); Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994) (continuing discrimination may be found where there is proof of specific ongoing discriminatory policies or practices). Simply put, where the ALJ found no evidence of anti-union animus, and plaintiffs offer no new facts or legal theory with respect to the anti-union claim, no basis exists upon which to find wrongdoing by defendants at a subsequent time.
The Second Circuit reached a similar conclusion in DeCintio, 821 F.2d 111, where a medical center staff member brought a section 1983 claim alleging that he was suspended and fired because he was the ringleader of a particular group of disenchanted workers. After the SDHR dismissed two administrative complaints alleging retaliation, DeCintio brought his section 1983 action for "general harassment and retaliation." Notwithstanding the aggregated nature of the plaintiff's section 1983 claim, the Court of Appeals held that this portion of the lawsuit was precluded, in that "the retaliation issue was in fact litigated in the proceeding before SDHR," 821 F.2d at 117, and that "the retaliation issue was obviously material to the SDHR proceeding and 'essential to the decision rendered therein.'" Id. at 118 (quoting Ryan, 62 N.Y.2d at 500, 478 N.Y.S.2d at 826). See also Kirkland, 651 F. Supp. at 1230-31 ("[plaintiff's] federal complaint is clearly based on the same series of events and the same allegations of discriminatory retaliation on which his [SDHR] complaints were based.").
"The burden rests upon the [party resisting preclusion] to establish the absence of a full and fair opportunity to litigate the issue in [the] prior action . . . ." Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 827. Having failed to present any evidence to raise a new issue of fact or law, Scott has not shown any tangible need for an otherwise prohibited second day in court. Accordingly, with respect to that portion of the First Cause of Action pertaining to Goodman's alleged anti-union animus, it is the recommendation of this Court that plaintiffs be estopped from relitigating the issue in the instant action, as a virtually identical issue was decided in the PERB hearing.
2. The Public Concern Requirement
In the event the District Court concludes that Scott's anti-union claim is not barred by issue preclusion, the Court would then have to determine whether Scott's union activities are matters of public concern and thus protected by the First Amendment. This Court concludes that they are.
"It is well settled that persons do not relinquish their first amendment rights to comment on matters of public interest by becoming government employees." Piesco v. City of New York, Dept. of Personnel, 933 F.2d 1149, 1154 (2d Cir.), cert. denied, 502 U.S. 921, 112 S. Ct. 331, 116 L. Ed. 2d 272 (1991) (citing Rankin v. McPherson, 483 U.S. 378, 383-84, 107 S. Ct. 2891, 2896-97, 97 L. Ed. 2d 315 (1987); Connick v. Myers, 461 U.S. 138, 140, 103 S. Ct. 1684, 1686, 75 L. Ed. 2d 708 (1983); Pickering v. Bd. of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968)). In this connection, the Supreme Court in Pickering formulated a test that balances the employee's rights "as a citizen, in commenting upon matters of public concern [against] the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S. Ct. at 1734-35. Such a determination is a question of law for the court to decide. Connick, 461 U.S. at 148 n.7, 107 S. Ct. at 1690 n.7.
"The threshold question in applying this balancing test is whether [a public employee's] speech may be 'fairly characterized as constituting speech on a matter of public concern.'" Rankin, 483 U.S. at 384, 107 S. Ct. at 2897 (quoting Connick, 461 U.S. at 146, 103 S. Ct. at 1689). More specifically, a court must decide if the "public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest . . . ." Connick, 461 U.S. at 147, 103 S. Ct. at 1690. "The manner, time, and place of the employee's expression are relevant [to this inquiry], as is the context in which the dispute arose." Rankin, 483 U.S. at 388, 107 S. Ct. at 2899.
Plaintiffs in this case would not apply the balancing test to Scott's union membership and activity. Noting that Pickering, Connick, and their progeny dealt with protected speech rather than associational activity, see, e.g., Boddie v. City of Columbus, Mississippi, 989 F.2d 745, 747 (5th Cir. 1993), and that the Supreme Court has not addressed whether the public-concern requirement applies as well to associational activities, plaintiffs contend that associational activities are automatically protected by the First Amendment irrespective of the public-concern requirement. (Pl. Mem. 4/1/94 at 11.) The Second Circuit has not ruled on this issue, and other Circuits are split: the Fifth, Tenth and Eleventh Circuits have found the public-concern requirement inapplicable to retaliation claims based on associational activity, see Boddie, 989 F.2d 745 (Fifth Circuit); Saye v. St. Vrain Valley School District, 785 F.2d 862 (10th Cir. 1986); Hatcher v. Board of Public Education, 809 F.2d 1546 (11th Cir. 1987), while the Sixth and Seventh Circuits have applied the balancing test to associational claims. See Boals v. Gray, 775 F.2d 686 (6th Cir. 1985); Griffin v. Thomas, 929 F.2d 1210 (7th Cir. 1991).
As an initial matter, it is important to note that Scott's suit alleges retaliation based both on union membership as well as activity, campaigning, and positions taken on union issues. (Comp. at PP 8, 9, 10, and 14.) Thus, regardless of whether or not the public-concern requirement applies to purely associational conduct, the public-concern analysis will govern most aspects of this claim. See Griffin, 929 F.2d at 1213 (Connick emphasizes that speech rights encompass all forms of disclosure other than obscenity and other prohibited expression). More importantly, however, even applying the public-concern requirement to Scott's associational claims should not result in judgment in defendants' favor: as it is the opinion of this Court that Scott's union membership and activities constitute matters of public concern, it is unnecessary to decide which of the circuit courts is correct regarding the applicability of the balancing test.
Scott's membership in Local 100 in and of itself satisfies the public-concern requirement. The Supreme Court has declared that "the public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so." Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 465, 99 S. Ct. 1826, 1828, 60 L. Ed. 2d 360 (1979). Indeed, as even the Sixth Circuit noted in Boals, in holding the balancing test applicable to associational activities: "We have no doubt that an employee who is disciplined solely in retaliation for his membership in and support of a union states a valid first amendment claim under Connick and Pickering." Boals, 775 F.2d at 693.
The core purpose of a labor union is to address, criticize, and attempt to improve the way an employer operates both in general and in relation to its employees. The role of a union is particularly important where, as here, the employer is a governmental entity. "It is hornbook law . . . that speech about 'the manner in which government is operated or should be operated' is an essential part of the communications necessary for self-governance the protection of which was a central purpose of the First Amendment." Connick, 461 U.S. at 156, 103 S. Ct. at 1695 (Brennan, J., dissenting) (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1436, 16 L. Ed. 2d 484 (1966)). "Thus, the state may not abridge the right of public employees to associate in a labor union and to seek redress of grievances through collective action . . . ." Stellmaker v. DePetrillo, 710 F. Supp. 891, 892 (D. Conn. 1989) (quoting United Mine Workers of America, Dist. 12 v. Illinois State Bar, 389 U.S. 217, 221-23, 88 S. Ct. 353, 355-57, 19 L. Ed. 2d 426 (1967)). Consequently, under the Pickering/Connick analysis, union activity in toto is certainly broader than "matters only of personal interest."
Even if mere membership in a labor union were not enough to satisfy the public-concern requirement, the nature of the work done by Local 100 in this case is of particular interest to the public. For example, as detailed hereinafter,
the campaign waged by Local 100 against the proposed collective bargaining agreement and the proliferation of thousands of message-bearing buttons garnered numerous articles and features in the popular media. (See Affidavit of Tim Schermerhorn dated 4/5/94 ["Schermerhorn Aff. 4/5/94"], Exs. A-H.) While the media's interest may not always equate to "public concern," "one of the fundamental purposes of the first amendment is to permit the public to decide for itself which issues and viewpoints merit its concern." See Cohen v. California, 403 U.S. 15, 24, 91 S. Ct. 1780, 1787, 29 L. Ed. 2d 284 (1971).
An examination of Scott's particular activities in connection with Local 100 reinforces this Court's conclusion that the public-concern requirement has been satisfied here. Scott's formation of Transit Women United, her publication of "Hell on Wheels," her advocacy for New Directions, her running for union office, and her representation of workers against management in disputes cannot fairly be characterized as matters "personal in nature and generally related to her own situation." Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). See also Connick, 461 U.S. at 148, 103 S. Ct. at 1691 (majority of grievances were those of "a single employee upset with the status quo."). In view of other cases upholding findings of public concern,
the labor relations of the TA, the organization of its rank-and-file workers, and the safe and efficient operation of New York City trains are certainly matters of public concern.
The Pickering/Connick balancing test next requires consideration of the employer's interests, such as "whether the statement impairs discipline by superiors or harmony among co-workers . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin, 483 U.S. at 388, 107 S. Ct. at 2899. In this case the TA has offered no such evidence that might indicate that Scott's activities, or those of the union in general, had a detrimental effect on its overall operation. Accordingly, assuming that plaintiffs' anti-union claim is not ...